Is Marijuana Legal in South Carolina?

As criminal lawyers in Charleston, people ask us “Is marijuana legal in South Carolina?” or “Are edibles legal in South Carolina?” Over half of the American states have decriminalized or legalized marijuana or edibles, at least medically, if not also recreationally. In this article, we’ll explain whether pot is legal in SC for recreational or medical use and we’ll cover whether other related substances, such as hemp and CBD oil, are legal in our state.

Before we get started, let’s clarify a term of art. People often talk about the “legalization” of certain things. Others say “decriminalization.” Without getting into a huge discussion, we’d just like to quickly say that “decriminalization” is generally the loosening or abolishing of laws that make it criminal to get caught with pot. “Legalization” refers to the government wiping out nearly all prohibitions for the possession, manufacture, and distribution of marijuana, and then regulating and taxing it. For purposes of this article, we’re not going to split hairs and will simply just use the term “legal.”

Is Pot Legal in South Carolina?

The short answer to this question is “No.” However, there have been some recent developments that suggest that it could be someday.

South Carolina Medical Marijuana Laws – A law called the Compassionate Care Act has been proposed but not yet passed in South Carolina. This law, if passed, would allow certain people or their caregivers to possess up to two ounces of marijuana. To qualify, the person would have to be diagnosed with a “debilitating medical condition” which can include things like cancer, glaucoma, HIV, AIDS, hepatitis C, PTSD, Parkinson’s, and certain other conditions, including those that cause debilitating pain, severe nausea, or seizures.

There would still be a number of limitations on what one can do while under the influence and where one could legally smoke marijuana. One could still maintain custody of their children so long as they act responsibly under this law. However, one could not drive a vehicle while under the influence of marijuana, could not sell or give marijuana to someone who doesn’t hold a medical marijuana card and could not grow their own marijuana but instead would have to obtain it from a licensed dispensary. There are also a number of provisions in the Compassionate Care Act that discuss how it will be regulated and how medical cardholders will be monitored. Our attorneys don’t know if or when the Compassionate Care Act will be passed, but there’s a chance it will at least be voted on again this year (2019).

Recreational Marijuana in South Carolina – Recreational marijuana is illegal in South Carolina. There seems to be a belief by some out there that law enforcement officers, family court judges, and the public in general care less about marijuana these days than they used to. While there might be some truth to this statement with regard to some police officers, judges, and citizens, anyone considering using or selling marijuana in South Carolina should still be aware of the possible consequences.

Marijuana crimes can be punished as follows:

  • Simple possession (28 grams or less), 1st offense: up to 30 days in jail or a fine.
  • Possession of marijuana paraphernalia: civil fine.
  • Possession With Intent to Distribute (PWID), 1st offense: up to 5 years in jail and/or up to a $5,000 fine.
  • Distribution of Marijuana, 1st offense: up to 5 years in jail and/or up to a $5,000 fine.
  • Manufacture of Marijuana, 1st offense: up to 5 years in jail and/or up to a $5,000 fine.
  • Trafficking (more than ten pounds but less than 100 pounds), 1st offense: 1 year to 10 years.
  • Trafficking (more than 100 pounds but less than 2,000 pounds, or between 100 and 1,000 plants regardless of weight): mandatory sentence of 25 years and $25,000 fine.
  • Trafficking (more than 2,000 pounds but less than 10,000 pounds, or between 1,000 and 10,000 plants): mandatory sentence of 25 years and $50,000 fine.
  • Trafficking (more than 10,000 pounds or 10,000 plants): between 25 and 30 years and a fine of $200,000.

Is Delta-8 Legal in South Carolina?

The short answer is no according to South Carolina’s Attorney General. If you go into many gas stations or smoke shops in South Carolina, you will likely see delta-8 products for sale such as vape liquids and edibles. So, many people assume that delta-8 products are legal. However, South Carolina’s Attorney General, the chief law enforcement officer in our state, issued an opinion in October of 2021 stating that delta-8 is illegal as follows:

The Hemp Farming Act creates such a specific exception in certain circumstances for hemp containing up to a specific level of one specific isomer – that is, delta-9 THC. S.C. Code Ann. § 46-55-10 et seq. (Supp. 2020). It does not create an express exception for delta-8 THC, or any other THC isomer. See Id. Lawful hemp as contemplated by the Hemp Farming Act may contain trace amounts of THC isomers, such as delta-8. See Aycock v. State, 246 S.E.2d 489 (Ga. Ct. App. 1978). However, this legislative scheme cannot fairly be read to legalize delta-8 THC or any other isomer of THC in itself.

Although the Attorney General’s opinion is not a law, it may be relied upon by prosecutors if you are arrested for possession of delta-8. That being said, we are unaware of arrests regarding the sale or possession of delta-8 products.

Is CBD Oil Legal in South Carolina?

CBD and THC are nearly identical from a molecular standpoint. A growing number of studies say that both have medicinal properties. The primary difference for our purposes in this article is that THC is considered to have psychoactive properties (gets you “high”) while CBD does not.

CBD generally comes in the form of a smokable oil, which is derived from hemp. It is legal under both South Carolina and federal law. It should be noted, however, that CBD is not yet well-regulated, and purchasers should do their homework about the retailer and manufacturer before purchasing and using CBD to ensure that are getting what they think they are getting and to ensure that the product does not contain an illegal level of THC.

Is Hemp Legal in South Carolina?

Hemp is defined in South Carolina as marijuana having “a delta–9 THC concentration of not more than 0.3 percent on a dry weight basis, or the THC concentration for hemp defined in 7 U.S.C. Section 5940, whichever is greater.” In other words, while hemp can contain THC, the levels are so low that it will not get someone high. Hemp has a number of uses including making clothing, lotions, paper, biodegradable plastic, and bio-fuel.

In 2018, our state implemented the South Carolina Industrial Hemp Program, also known as the Hemp Farming Act, where 20 licenses were granted to applicants so they could each grow up to 20 acres of hemp. These numbers were set to increase to 40 licensees with 40 acres each in 2019 and 2020. However, in 2019, the program was repealed, and the ability to grow hemp in South Carolina is no longer limited to 40 licenses or a number of acres. So, growing hemp is now fully legal in South Carolina.

Criminal Defense Attorney in Mt Pleasant & Charleston

If you need help regarding a charge of possession of marijuana or other criminal charges, contact Futeral & Nelson today for a free and confidential consultation with a criminal defense attorney.

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